|
|
|
PRELIMINARY FINDINGS REGARDING
IMPLEMENTATION OF WHITE HOUSE GUIDANCE REGARDING FOIA
The White
House Memorandum was issued in March 2002. Each agency
was directed by the White House Memorandum to "review their
records management procedures and their holdings of documents"
and report to the White House Chief of Staff on "the completion,
or status, of their review" by June 19, 2002. At the time
of the issuance of this report, each agency will have had 45
days to respond to the Archive's White House Memorandum FOIA
request. Nonetheless, only 13 of the 35 agencies surveyed have
provided substantive responses to the requests. Thus, the Archive's
research into the implementation of the White House classification
and FOIA guidance remains ongoing. Although it is too early
to reach final conclusions regarding the implementation of the
White House Memorandum, this report includes preliminary findings
based on completed FOIA responses from approximately one-third
of the 35 agencies surveyed. A complete discussion, along with
complete sets of the materials obtained from the agencies, will
be included with the issuance of the Phase Two report.
In general, agencies have anecdotally told the
Archive that the White House Memorandum required more action
than the Ashcroft Memorandum. It directs specific activities
from each agency, including the identification of classified
or sensitive records, activities to safeguard those records,
and a report back on implementation. One thing that stands out
in the internal agency activities relating to the White House
and ISOO/OIP memoranda is the consistent repetition that FOIA
exemptions can be used to protect critical infrastructure information
and commercial information.
Several agencies, including OMB, Department of
Education, FBI, and HUD, responded that they have no documents
responsive to the FOIA request. These agencies failed to release
any reports that may have been provided to the White House Chief
of Staff regarding their reviews of records concerning weapons
of mass destruction or sensitive, but unclassified, materials.
For those agencies that do not deal with military or intelligence
issues, it is not surprising that the White House Memorandum
did not result in much activity. Nonetheless, Phase Two of the
Archive Audit will include individual interviews with these
agencies to determine what steps, if any, may have been taken.
FEMA indicated that it does not handle weapons
of mass destruction, but did provide its report to the White
House Chief of Staff, in which it verified that it complied
with safeguards to protect against the release of potentially
damaging information. Similarly, the NSF provided its report
to the White House Chief of Staff, in which it indicated that
it "completed reexamination of current measures for identifying
and safeguarding information regarding weapons of mass destruction
and other sensitive documents related to homeland security"
and that its safeguards and "restrictions to access to
information, are consistent with existing law and policy."
Many other agencies that do not handle weapons
of mass destruction, such as the Small Business Administration,
did circulate the White House and ISOO/OIP memoranda and issue
guidance to all agency staff regarding the importance of records
management procedures to Homeland Security. Similarly, the GSA
noted that it does not deal with information regarding weapons
of mass destruction but viewed the guidance on FOIA exemptions
as relevant; GSA reported that it is reviewing its FOIA regulations
"to determine, in conjunction with counsel, whether the
exemptions from disclosure need to be revised." HHS also
disseminated the memorandum to all its FOIA officers.
Still other agencies appeared to have requested
internal reviews, but not to have imposed centralized policy
authority over the conduct of the review by agency components.
These agencies also disseminated the White House Memorandum's
guidance concerning FOIA disclosures. For example, the Treasury
Department forwarded the White House and ISOO/OIP memoranda
to Department officials and asked them to report on the existence
of weapons of mass destruction information and related sensitive
"Homeland Security" information and report on whether
the records were protected in accordance with the ISOO/OIP guidance
concerning classification, extension of classification, reclassification
and protection of "sensitive but unclassified" information.
The memorandum also highlighted the use of Exemption (b)(2)
for sensitive critical infrastructure information and the use
of Exemption (b)(4) for information voluntarily submitted to
the government as means for withholding information from release
under the FOIA. The Department's review determined that they
do not handle much information pertaining to weapons of mass
destruction, except for information already classified by other
agencies, and that the sensitive Homeland Security information
is already protected from release. All FOIA and disclosure officials
were informed "to use [FOIA] exemptions" if there
are requests for sensitive Homeland Security information.
The Department of Commerce also initiated a review to determine
whether its units handle "classified, sensitive but unclassified,
For Official Use Only" or unprotected records and requested
a report on the steps taken to protect classified or sensitive
information. The Department's Report on its efforts indicates
that two units identified information regarding weapons of mass
destruction or public harm scenarios, but the specific units
and their corrective actions have been deleted from the report
based on the "high" (b)(2) exemption to FOIA.
The Department of Navy distributed the White House
Memorandum to all agency FOIA contacts with a cover memorandum
that directed the recipient to "immediately adopt the steps
addressed in the ISOO memorandum … when conducting a review
of documents requested under FOIA." It also references
the Ashcroft Memorandum and requests that particular attention
be paid to "giving full and careful consideration to all
applicable FOIA exemptions when processing documents that fall
under this category."
Some agencies appeared to initiate detailed review
of their records, with centralized policy control exercised
by the official responsible for the activity. For example, the
Environmental Protection Agency forwarded the White House and
ISOO/OIP memoranda to agency officials, noting that they do
not constitute a change in EPA policy regarding the handling
of information but "suggest a heightened awareness when
dealing with classified or otherwise sensitive information."
The memorandum notes that the Agency does not have original
classification authority (although this authority was granted
to EPA in May 2002), but that the need to protect sensitive
but unclassified information related to homeland security is
relevant. It specifically recognizes that the risk of disclosure
should be considered together with the benefits of disclosure.
It counsels that FOIA requests must be filled as directed in
the Ashcroft Memorandum and highlights that Exemption (b)(2)
may be used to protect sensitive critical infrastructure information
and that Exemption (b)(4) may be used to protect voluntarily
submitted information from the private sector. The memorandum
notes that the Agency is working to identify sensitive "electronic
information resources." An additional memorandum initiates
a review of EPA websites, publicly disseminated information
and information available to the public upon request. It too
references the Ashcroft Memorandum and the use of Exemption
(b)(2) to protect information that relates to critical infrastructure
information. It specifically indicates that a decision to remove
materials must be removed prior to any removal of the materials.
The Agency's report on its activities notes, among other things,
that it removed materials from its web site.
NASA also took a similar approach. It issued "NASA's
Web Site Registration and Internet Publishing Guidelines"
and blocked public access to all unapproved Web sites. It established
a process for registration, review and approval of Web sites
and materials. It also established an "Operational Security
program" to educate all employees and contractors regarding
security considerations, including the identification of critical
information and the importance of protecting sensitive information.
It disseminated the White House Memorandum among Center FOIA
offices and discussed it at the agency's annual FOIA conference.
NASA indicated that it continued to review all current and historical
records for the purpose of reclassifying, declassifying and
downgrading records containing weapons of mass destruction information
and other sensitive records related to homeland security. It
also noted that it was "revising NASA policy directives
regarding records management and security policy guidelines
to further ensure that NASA personnel identify and safeguard
homeland security information."
The Department of the Interior took a similar
tack, asking its offices to survey all records, websites, and
information systems. It highlights the use of Exemption (b)(2)
for sensitive but unclassified information. Seven bureaus within
the Department were identified as handling weapons of mass destruction
information or other information that could impact the security
of the nation or threaten public safety. The steps taken by
those bureaus to protect the information were not reported.
The sole response from the military to date has
been from the Navy, which forwarded the White House Memorandum
along with the Ashcroft Memorandum to all FOIA contacts. It
directed "You are advised to immediately adopt the steps
addressed in the ISOO memorandum [] when conducting a review
of documents requested under FOIA. Please pay particular attention
to Attorney General Ashcroft's memorandum of October 12, 2001
[] by giving full and careful consideration to all applicable
FOIA exemptions when processing documents that fall under this
category."
After receiving substantive responses from all 35 of the agencies
surveyed, the Archive will publish the results of the audit
and all of the related correspondence, including each agency's
report to the White House Chief of Staff. The Archive plans
to review each agencies 2002 annual FOIA report data to determine
whether it is possible to detect a change in the patterns of
exemptions used to deny access to records.
|
